United States v. Julian Mitchell ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-3145
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Julian Mitchell
lllllllllllllllllllll Defendant - Appellant
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No. 14-3148
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Julian Mitchell
lllllllllllllllllllll Defendant - Appellant
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Appeals from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: June 5, 2015
Filed: June 8, 2015
[Unpublished]
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Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.
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PER CURIAM.
In these consolidated matters, Julian Mitchell–proceeding pro se–directly
appeals following imposition of sentence by the district court1 upon his guilty plea
to a felon-in-possession charge and the revocation of his supervised release in a prior
criminal matter. We affirm.
While Mitchell was serving a 5-year term of supervised release, authorities
found a firearm in his residence, and he was charged with being a felon in possession
of a firearm. Mitchell’s supervising probation officer thereafter obtained a violator’s
warrant against Mitchell for violating his supervised release conditions. The new
criminal matter and the supervised release proceedings were combined for
disposition.
Mitchell moved to suppress the firearm found during the search of his
residence. Following an evidentiary hearing, the district court adopted (without
objection) the magistrate judge’s2 report and recommendation to deny the motion.
Mitchell thereafter pleaded guilty to the felon-in-possession charge, reserving his
1
The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.
2
The Honorable Robert E. Larsen, United States Magistrate Judge for the
Western District of Missouri.
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right to appeal the denial of his suppression motion. At a combined sentencing and
revocation hearing, Mitchell admitted violating several of his release conditions, as
charged in the violation report, and supervised release was revoked. Following
argument by both sides and Mitchell’s opportunity for allocution, the district court
sentenced Mitchell to serve 46 months in prison and three years of supervised release
on the felon-in-possession charge, and to serve 30 months in prison as a revocation
sentence on the prior criminal matter, with the sentences to run consecutively.
On appeal Mitchell argues that the district court erred in denying his
suppression motion, because (1) the search was conducted based on consent given by
his mother, who was mentally incompetent to give consent, and (2) he did not consent
to the search. These arguments fail. See United States v. Sigillito, 759 F.3d 913, 923
(8th Cir. 2014) (standard of review); United States v. Newton, 259 F.3d 964, 966 (8th
Cir. 2001) (failure to object to magistrate judge’s report). We agree with the district
court that the searching officers reasonably relied on the consent given by Mitchell’s
mother: she opened the door to the residence, indicated that she lived there with her
son, and demonstrated familiarity with the premises. We see nothing in these facts,
or the testimony developed at the suppression hearing, that would have suggested to
the officers that the mother lacked mental capacity to consent to a search of the
premises. See United States v. Lindsey, 702 F.3d 1092, 1096-97 (8th Cir. 2013)
(discussing officer’s reasonable reliance on third party’s demonstration of apparent
authority to consent to search of premises). As to Mitchell’s refusal to give his
consent, we note that he did not object to the search in his mother’s presence. Indeed,
he was at police headquarters at the time and had agreed to think about whether he
would consent to the search. Cf. Fernandez v. California, 134 S. Ct. 1126, 1129-30,
1132-37 (2014) (discussing narrow exception that finds third-party consent
insufficient when another occupant is present and objects to search).
Mitchell also contests his revocation sentence, arguing for the first time on
appeal that the district court wrongly inflated his revocation range, failed to announce
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what the range was, and failed to explain its variance from the range. We find no
abuse of discretion. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)
(en banc) (deferential abuse-of-discretion standard); United States v. Brandon, 521
F.3d 1019, 1027 (8th Cir. 2008) (unobjected-to procedural errors are reviewed for
plain error). The probation officer’s supervised-release-violation packet–including
a list of violations, as well as a worksheet reflecting the “grade” assigned to each
violation and the resulting Guidelines revocation range–was before the court and the
parties and was referred to at times. Mitchell stipulated that he had violated a
supervised condition (among others) prohibiting his commission of another
crime–which the worksheet noted was a Grade A violation yielding a range of 24-30
months in prison based on his criminal history category. We find no basis to
conclude that error (plain or otherwise) occurred in calculating or stating the
revocation range. See United States v. Whirlwind Soldier, 499 F.3d 862, 874 (8th
Cir. 2007). We also find that the 30-month sentence, falling at the top of the range,
was substantively reasonable. See Feemster, 572 F.3d at 461. Finally, we conclude
that the ineffective assistance claims that Mitchell has raised are not properly before
us in this direct criminal appeal. See United States v. McAdory, 501 F.3d 868,
872-73 (8th Cir. 2007).
The judgment is affirmed.
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